of the same intelligence and talent as those who conduct newspapers in London, it is an evil incident to the improvement we have made in Chancery practice in printing documents that they are more easily circulated than they used to be: and, as to those Hampshire papers, I would rather abstain from pronouncing an opinion until I hear more of the particular case in which you have to answer the affidavit. Mr. Giffard, from which it appears that the affidavits got into the Hampshire paper from merely reprinting the documents published by you. I shall consider whether that is a case in which the motion ought to be made at all. 1 postpone all the cases about the Hampshire papers. With regard to the Morning Post, I think I must make the printer pay the costs. He will be indemnified no doubt. The printer is the person who is brought up in many of these cases. In the celebrated case of "Junius'e Letters," State Tr. xx. 895, Mr. Woodfall was the printer, and was not the person who supplied the information. But the article in the Morning Post goes beyond, merely representing the article as extracted from the Pall Mall Gazette. From what that article states, it is clear they must have been in communication with some person who was wishing to make what Lord Hardwick calls an improper attempt to prejudice the case before it was heard. No doubt they may have thought it fair, that as they stated the evidence on one side, they should state what they understood was to be produced on the other. It only shows how unfortunate it is that they should have a notion that they ought to print anything at all when the case is in embryo, and in such a stage that one side only has filed affidavits which have not been read before the Court. As to the Morning Post, I. make them pay the costs; as to the Times and the Morning Advertiser, it is enough to say that there will be no costs on either side

IRISH REPORTS.

CHANCERY.

PURCELL V. DOUGLAS.*

Practice-Pleading - Inconsistent pleas-Pla pis darrein continuance-Plea in bar of further maintenance of the action-Common Law Procedure Act (Ireland), 1853, ss. 58, 72, 73.†

A plea, purporting to be a plea of set-off, is bad if it omit to aver the defendant's willingness to set off the amount against the plaintiff's claim.

A plea puis darrein continuance will be set aside if pleaded without the affidavit required by the 73rd section of the Common Law Procedure Act (Ireland), 1853, or an order of the Court, in the absence of such affidavit.

A plea in bar of the further maintenance of the action will not be allowed along with trav-rees going to the entire cause of the action.

The plea of payment mentioned in the 58th section of the Act above quoted is a plea of payment betore action of the entire sum claimed.

[15 W. R. 1019. C. P. (Ir.) July 1.] This was an application to set aside a plea as embarrassing.

The action was brought to recover a sum of £94 6s. 61., money had and received, and due on accounts stated. The defendant pleaded a traverse of each cause of action, and also a fur

* Before GEORGE, J., sitting in Consolidated Chamber. + Corresponding to the 84th, 68th, and 69th sections of the 15 & 16 Viet. c. 76.

[Irish Rep.

ther defence to the entire, which was in the following terms:-As to £33 17s. 6d., part of the said sum of £94 6s. 6d., defendant says that before the commencement of this suit the plaintiff was, and still is, indebted to the defendant in a sum equal to the said sum of £33 17s. 6d, for work and labour done and performed. And as to the sum of £60 9s., being other part of the said sum of £94 6s. 6d., defendant says that the plaintiff ought not further to maintain his action in respect of the said sum of £60 9s., because the defendant says that after the commencement of this suit, and since the last pleading in this action was pleaded, defendant satisfied and discharged the said sum of £60 9s. by payment thereof in manner hereon endorsed.

E Gibson, in support of the motion. -The portion of the plea which deals with the sum of £33 17s. 6d. is defective, because, commencing as a plea of set-off, it omits the usual and necessary averment that defendant is willing to set off that sum against an equal amount of plaintiff's claim. The part of the plea which deals with the sum of £60 9s., is either a plea of accord and satisfaction, in which case it should aver our acceptance of the money, but it does not; or it is a plea of puis darrein continuance, in which case it should comply with the provisions of the 73rd section of the Common Law Procedure Act of 1853, requiring an affidavit that the matter of the plea arose within eight days next before the pleading of such defence, unless the Court shall otherwise order; here there is no such affidavit, and no such order: or, lastly, it is a plea in bar of the further maintenance of the action, in which cases it cannot stand along with the traverses which go to the entire cause of action: Suckling v. Wilson, 4 Dowl. & L 167.

O'Driscoll. in support of the plea -The averment that the defendant is willing to set-off the £33 17 61 against an equal portion of the plaintiff's claim is merely formal, and its omission will not vitiate the plea if it be otherwise evident that such is the purport and intention of the plea The part of the plea which deals with the sum of £60 98. is not a plea puis darrein continuance; it is therefore not subject to the provisions of section 73 of the Article; it is a plea to the further maintenance of the action. governed by section 72. Such a plea may be pleaded along with a traverse of the entire cause of action; section 58: Cook v. Hopewell, 11 Ex. 555. 4 W. R. 291; Henry v. Earl, 8 M. & W. 228; Suckling v. Wilson, ubi sup, is inapplicable to the present system of pleading.

E. Gibson, in reply.

GEORGE, J.-The first part of the third plea purports on the face of it to be a plea of set-off, and, in my opinion, it is clearly bad, as omitting the averment of the defendant's willingness to set off the amount. The remainder of the plea appears to me to purport to be a plea puis darrein continuance; its terms are precisely those which should be used in such a plea. If it be a plea puis darrein continuance, it is open to the objection of not fulfilling the requirements of the 73rd section of the Common Law Procedure Act of 185. It is argued, however, by the counsel for the defendant, that it is a plea to the further maintenance of the action, governed by the 72nd section, and sanctioned by the 58th. The latter

section permits a defence denying the debt to be pleaded along with a plea of payment. In my opinion by such a plea of payment is meant a payment of the entire amount before action brought. A defence of payment after action brought has never been allowed along with traverses going to the entire cause of action. The cases cited by counsel for the defendant, therefore, do not apply to the present case, where such traverses are pleaded. The defence must be set aside, with costs; the defendant to be at liberty to amend, as he may be advised, within two days. Rule accordingly.

DIGEST.

DIGEST OF ENGLISH LAW REPORTS.

FOR THE MONTHS OF NOVEMBER AND DECEMBER, 1866, AND JANUARY, 1867.

(Continued from page 165.) ADEMPTION.-See WILL, 11. ADMINISTRATION.

1. A guardian of an infant sole next of kin is entitled to administration in preference to creditors; and the latter cannot require the guardian to give justifying security, unless a very strong case for so doing is mode out.John v. Bradbury, Law Rep. 1 P. & D. 245.

2. A testator, by will, gave his property to trustees in trust, to invest part in an annuity for his widow, and to divide the residue among his children; the amount of the annuity and the names of the trustees and executors were left in blank. Administration with the will annexed was granted to the widow.—Goods of Pool, Law Rep. 1 P. & D. 206.

3. At an intestate's death, A., his only next of kin, was in New Zealand. On its appearing that immediate representation was necessary to preserve the estate, administration was granted to the intestate's sister for the benefit of A., limited till the grant should be made to A., or his attorney, and the administratrix was ordered to give justifying security.- Goods of Cholwill, Law Rep. 1 P. & D. 192.

4. A creditor was allowed to cite the next of kin to take administration, or show cause why it should not be granted to the applicant, though his right of action was barred by the statute of limitations.-Goods of Coombs, Law Rep. 1 P. & D. 193.

5. In a suit by creditors to administer the realty, there being no personalty, and the realty proving deficient, the costs of the plaintiffs and of the beneficial devisee, defendants, were taxed as between party and party, and paid pari passu out of the fund; and the

3. The respondent had been ordered to pay permanent alimony at a certain rate, so long as he should receive a rent charge of £400 a year (his only source of income), the trustees of which had a discretionary power to refuse payment. The respondent had, before the order, become bankrupt; but the trustees had continued to pay him the rent-charge, and he had failed to comply with the order. Held (the respondent and trustees opposing), that a sequestration shonld issue in general terms against the property, &c., of the respondent.— Clinton v. Clinton, Law Rep. 1 P. & D. 215.

4. In a separation deed, the husband covenanted with trustees to allow his wife £50 a year, he being indemnified against all liabilities on her account; and it being agreed, on her behalf, that she would not endeavour to compel the husband again to live with her, or to allow her any further maintenance or alimony than the annuity of £50. Held, that in the absence of any act showing an unqualified acceptance of the provisions of the deed, or of any attempt to enforce it against her husband, the court of equity would not, on interlocutory motion, restrain her from proceeding to the divorce court to obtain an allowance for alimony, as incident to her petition for judicial separation on the ground of cruelty; but the court put her under an undertaking to deal with the alimony as it should direct.Williams v. Baily, Law Rep. 2 Eq. 731.

APPEAL.

1. On appeals, the appellant will begin.Williams v. Williams, Law Rep. 2 Ch. 15.

2. On appeal, any previous order in the cause may be read, but not evidence referred

to in it, unless referred to in the order under appeal.-Jenner v. Morris, Law Rep. 1 Ch. 603. ARBITRATOR.-See AWARD. ARREST.-See PRACTICE, 3. ASSIGNMENT.

A. assigned to B. marginal receipts of a bank, representing deposits lodged in the bank till advice of payment of bills discounted by the bank. B. notified the bank of the assignment on the same day that A., who was largely indebted to the bank, suspended payment.Held, that, as against the bank, B. was entitled to the amount covered by the marginal receipts, subject only to a set-off of any sums actually due and payable by the bank to A. at the time when the receipts became payable on liabilities contracted before the bank had notice of the assignment.-Jeffryes v. Agra and Masterman's Bank, Law Rep. 2 Eq. 674. ATTORNEY.-See SOLICITOR.

AUCTION.-See VENDOR AND PURCHASER, 1.
AWARD.

1. To an application for a stay of proceed ings under the Common Law Procedure Act, 1854, sec, 11, on the ground that the instrument declared on provides, that, “if any difference should arise between the parties, either in principle or detail," it shall be referred to arbitration, it is no answer that the difference is one of law as to the construction of the in. strument.-Randegger v. Holmes, Law Rep. 1 C. P. 679.

2. By an agreement under seal, it was stipulated, that, if any dispute should arise concerning the subject matter of the agreement, or the agreement itself, such dispute should be referred to such member of the firm of B. & Co. as that firm should appoint, in accordance with the Common Law Procedure Act, 1854. Dis. putes having arisen, B. & Co. appointed a member of their firm arbitrator, and he made his award. Held, that there was sufficient submission in writing to be made a rule of court under the Common Law Procedure Act, 1854, sec. 17. Re Willcox v. Storkey, Law Rep. 1 C. P. 671.

3. By charter-party between ship-owner and charterers, it was agreed, that, should any dispute arise, it should be referred. The owner sued for freight, and the charterers preferred a cross claim for damages resulting from the captain's misconduct; and, being willing to refer all matters to arbitration, the court, at their request, stayed proceedings under the Comman Law Procedure Act, sec. 11.-Seligmann v. Le Boutillier, Law Rep. 1 C. P. 681.

BAILMENT.-See BILL OF LADING. BILL OF LADING.

1. A. was indorsee of a bill of lading, drawn in a set of three, of cotton, which had been lately landed, under an entry by A. at a sufferance wharf, with a stop thereon for freight; on March 4, A. obtained from M. an advance on the deposit of two copies of the bill, M. assuming the third to be in the master's hands; on March 6, the stop for freight being then removed, A. obtained from B. an advance on the deposit of the third copy of the bill which A. had fraudulently retained. On March 11, B., knowing of M.'s prior advance, sent his copy of the bill to the wharf, and had the cotton transferred into his own name, and afterwards sold it, and received the proceeds. Held, that the bill of lading, when deposited with M., retained its full force, though the cotton had been landed and warehoused; and there was a valid pledge of the cotton to M., and he could sue B., either for conversion of the cotton, or for the proceeds of the sale.-Meyerstein v. Barber, Law Rep. 2 C. P. 38.

2. H. requested W. to purchase cotton for him in W.'s name. W. agreed, employing (with H.'s knowledge) as a broker, C., who knew that W. was an agent; and W. became liable on a series of contracts, the first of which was due Sept. 9. Cotton failing, C. refused to take up the contracts unless secured from loss; and, on Sept. 26, H. deposited with W., who deposited with C., a bill of lading of goods belonging to a foreign firm, of which H. was factor. On the same day, C. made a first payment on account of W.'s indebtedness, and continued to make payments. H. became in. solvent. Held, that the deposit of the bill of lading by H. was not made in respect to an antecedent debt of H. to W. within the meaning of the Factors' Act, and was binding on the foreign firm.-Jewan v. Whitworth, Law Rep. 2 Eq. 692.

PRACTICE, 2.

See FREIGHT, 1, 2; SHIP, 1; STOPPAGE IN TRANSITU. BILLS AND NOTES.-See CONTRACT, 1; BOUNDARY.-See DEED, 1. CAPITAL.-See SEPARATE ESTATE, CHARTER PARTY.

A charter-party provided that the ship should "with all convenient speed (on being ready), having liberty to take an outward cargo for owners' benefit direct, or on the way, proceed to E., and there load a full cargo." This the freighters bound themselves to ship. The ship deviated to C., and arrived at E. a few days

later than she would had she gone there direct. The only injury to the freighters from this delay was a small loss in freight. In an action against the freighter, held, that the above clause was a stipulation, not a condition precedent; and that the delay did not justify the freighter for refusing to load a cargo, but that his remedy for any damage was by cross-action.-McAndrew v. Chapple, Law Rep. 1 C. P. 643. CHILDREN, CUSTODY OF.-See GUARCIAN.

CODICIL.-See WILL, 2.

COMPANY.-See CONTRACT, 1; MASTER AND SERVANT, 3, 4; PRACTICE, 4; ULTRA VIRES; VENDOR AND PURCHASER, 3.

CONDITION.-See PARTY; CONTRACT, 2, 3.

CONTRACT.

1. The defendants, members of an unregis tered society, gave the following note for a debt of the society: "Twelve months after date, we the undersigned, being members of the executive committee, on behalf of the L. and S. W. Society, do jointly promise to pay," &c. Held, that they were personally liable.Gray v. Raper, Law Rep. 1 C. P. 694.

2. A court will not imply conditions not expressed in an agreement, if it appear, from such agreement, that the conditions were either not thought of, or else that they were intentionally excluded from the agreement.-Midland Railway Co. v. London and N. W. Railway Co., Law Rep. 2 Ex. 524.

3. A contract to sell cotton at a given price, to arrive at L. per ship from C., provided: "The cotton to be taken from the quay; customary allowances of tare and draft; and the invoice to be dated from date of delivery of last bale." Held, that the clause as to place of delivery was not a condition/precedent, but a stipulation in favor of the sellers; and that the contract was in effect one to deliver the cotton at a reasonable time and under reasonable circumstances, the cotton to be at the buyers risk and charge from the time of landing on the quay.-Neill v. Whitworth, Law Rep. 1 C.P. 684. 4. A. sold stock, and lent the proceeds for a term of years to B., who covenanted to repay the stock in kind at the end of the term, and to pay interest on the proceeds in the mean while. A. allowed the loan to continue after the term. Held, that B. could discharge the loan by repaying the stock in hand, with interest till repayment; and that A. was not entitled to the market price at the end of the term, which was higher than at the time of re-pay. ment.-Blyth v. Carpenter, Law Rep. 2 Eq. 501.

5. A son forged his father's name on notes, which he gave to bankers, who advanced him money on them. The banker showed the signatures to the father, who denied that they were his. Afterwards, in the presence of father and son, the bankers insisted on a settlement to which the father should be party: they made no distinct threat of prosecution, but said, "If the bills are yours [the father's] we are all right; if they are not, we have only one course to pursue, we cannot be parties to compounding a felony." The father consented to a settlement, and gave them an agreement to mortgage his property, on which the notes were given up to him. Held, that the agree ment was invalid, and should be delivered up to be cancelled.- Williams v. Bayley, Law Rep. 1 H. L. 200.

See COVENANT; DISCOVERY; EASEMENT; FREIGHT, 3; LEASE; SHIP; VENDOR AND PURCHASER.

CONVERSION.

Testator devised his real estate to S. for life, with remainder to her children in tail with remainders over, and bequeathed personal estate on corresponding trusts: he directed his trustee to sell a certain freehold estate, and invest the proceeds in lands in certain counties or in government securities, to be settled to the like trusts as his real and personal estate were settled. The trustees, in 1805, sold the freehold estate, and invested the purchase money in government securities, and allowed it to remain so invested till S.'s death in 1863. S. had only one child, who was born and died in 1810. Held, that the securities vested absolutely in S.'s child as personal estate.—Rich v. Whitfield, Law Rep. 2 Eq. 583. CORPORATION.-See COMPANY.

COSTS. See EQUITY PLEADING AND PRACTICE, 4, 5, 6; PROBATE PRACTICE; SOLICITOR, 3.

COVENANT.

The purchaser of land covenanted with the vendor not to use any building erected thereon "as a public-house for the sale of beer." Held, that the sale of beer by retail, under a license "not to be drunk on the premises," was no breach.--Pease v. Coats, Law Rep. 2 Eq. 688. CRIMINAL LAW.-See CONTRACT, 5; JURISDICTION; MASTER & SERVANT, 5; PERJURY; THREAT. DAMAGES.-See LIBEL, 2; SHIP, 3. DEED.

1. In a lease, the boundary line was described "as a line drawn from A's house to a bound-stone;" and, in the description of the premises, it was said, "which said premises are particularly described by the map on the

back." On this map, the boundary line was drawn from the north-east corner of the house. The position of the house itself was incorrectly laid down on the map. Held, that the judge was bound to tell the jury that the line was to be drawn as marked on the map. (Lord Westbury dissenting; it being ascertained that the house was incorrectly laid down, there was a latent ambiguity, to determine which evidence should have been allowed to be given to the jury.)-Lyle v. Richards, Law Rep. 1 H. L. 222.

2. A., being indebted to B. on simple con tract, made a deed, by which, after reciting the debt, he charged property as security for its payment, and agreed to execute such mortgage of the property, with all covenants and clauses incidental thereto, as B. should require. Held, that the deed made the debt a specialty debt. -Saunders v. Milsome, Law Rep. 2 Eq. 573. See WILL, 4.

DEPOSITION.

Under the 1 Wm. IV. c. 22, sec. 10, which makes a deposition taken under it inadmissible at nisi prius, unless it shall appear to the satis. faction of the judge that the deponent is unable froin permanent sickness, or other permanent infirmity, to attend, held, that the court out of which the record comes may review the judge's decision, but that it will not do so, unless it is shown that there was frand, or that injustice has resulted from the course pursued; held, further, that the word "permanent" does not mean that the sickness is incurable. Quære, whether an affidavit of the deponent's ordinary medical attendant is admissible to shew such permanent sickness. Semble, per Willes, J., that it is.-Duke of Beaufort v. Crawshay, Law Rep. 1 C. P. 699.

had evinced a savage disposition, by attempting to bite.-Worth v. Gilling, Law Rep. 2 C. P. 1.

2. The plaintiff was bitten by a stray dog at a railway station. It appeared that, at 9 p.m., the dog tore the dress of another woman on the platform, of which the company's servants had notice; that, at 10.30, he attacked a cat in the signal box near the station, when the porter kicked him out, and saw no more of him; and that he appeared again at 10.40 on the platform, and bit the plaintiff. Held, no evidence to charge the company with negligence. Smith v. Great Eastern Railway Co., Law Rep. 2 C. P. 4. EASEMENT.

A. and B. were tenants of adjoining premises under the same landlord. B. was supplied by a pipe with water from A.'s well. Both premises were sold at auction, with others, in lots; one of the conditions being that each lot was subject to all rights of water and other easements (if any) subsisting thereon. A. and B. each purchased the lot of which they had respectively been tenants. Held, on bill by A. against the vendor, that B. had no easement or right of water, but merely a license from the landlord during his tenancy; and that A. was entitled to specific performance of his contract, without any reservation of such easement.-Russell v. Harford, Law Rep. 2 Eq. 507. See WATERCourse.

ELECTION.

1. A female minor, having executed marriage articles, which contained a covenant by the husband to settle her interest in real and personal estate, including after-acquired property, on the usual trusts, died without having confirmed the articles, leaving her husband surviving and an only child. Held, that the child could not both claim under the articles an interest in the personal estate, and also claim, as heir to his mother, the real estate attempted to be settled, but must elect whether to take under or against the settlement.-Brown v. Brown, Law Rep. 2 Eq. 481.

2. A will, attested by two witnesses, devised land in England to A., the testator's heir, for life, with remainder to trustees; and also devised to them land in St. Kitts on trust, to sell and hold the proceeds on the same trust. A. received the rents of the St. Kitts' estates during his life; and the trustees made ineffectual efforts, with his concurrence, to sell them. died intestate. Held, that, if the will were not properly executed to pass land in St. Kitts, yet that A. had elected to take under the will;

A.